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The NHS faces just under 11,000 new hospital claims per year, and many medical practitioners will be involved in a claim – whether by providing evidence or facing an investigation directly – at some point in their career. Greg McEwen, healthcare partner at insurance risk and commercial law firm BLM, guides practitioners through the choppy waters of patient claims.
It’s a sobering thought that if you follow a career in medicine, the chances are that you may find yourself involved in court proceedings at some point during your professional life.
That involvement might come about in a number of ways. For example, you may be asked to participate as an expert witness for one of the parties. This would be a matter of personal choice on your part. However, choice aside, there is also a likelihood that at some point during your career you will be involved in the defence of court proceedings, either as a factual witness or as a defendant in relation to your own acts or omissions.
How do we know this? The available data, of which there is a great deal, tells us so. NHS Resolution (NHSR, formerly the NHS Litigation Authority) publishes its annual report and accounts, containing a wealth of information regarding the incidence of clinical claims in the NHS. The latest report covers the year 2017/2018. Over the past three years, new hospital claims have held steady at a rate of just under 11,000 per year. These figures do not include claims involving general practitioners or private treatment.
Different medical specialities present greater inherent risks and consequently generate more claims. Within the hospital setting, the greatest incidence of claims (13%) is found in the field of emergency medicine, followed by orthopaedic surgery (12%), obstetrics (10%) and general surgery (9%).
According to the NHS Confederation there were 106,430 doctors working in hospitals and community healthcare services in March 2017 and more than twice that number of nurses and health visitors. Allowing for variations across specialties, it is said that a doctor can expect to be involved in a claim roughly once every ten years on average.
As of 1 April 2019, NHS Resolution is also responsible for the new State-backed GP Indemnity Scheme, but for now the majority of claims involving general practitioners will continue to be dealt with by medical defence organisations.
The majority of claims are valued at £50,000 or less, but there remain a significant number of much higher value claims, notably those involving serious birth injuries, which may be valued at £10 million or more. The NHS spent approximately £2.2 billion on clinical claims in 2017/18. That figure is expected to rise to £3.2 billion in 2020/21.
Only around 30 percent of claims result in formal court proceedings being commenced, and of that number barely 1 percent will end up at trial before a judge. However, that still leaves a significant number of claims being pursued through the courts, over 3,000 per year based on the current figures.
Even allowing for the fact that most claims do not end up at trial, there are various stages during the course of a claim where your input might be required. These include disclosure of documents, the provision of a witness statement and discussions with both legal advisers and independent expert witnesses. Years may elapse before a claim is made, particularly if the patient was a child, or is deemed to lack capacity. That being the case, it is of vital importance that the notes made in the medical record at the time are clear and comprehensive, as these will often form the only contemporaneous record of what actually took place and memories are likely to have faded.
The litigation process is often lengthy and of those practitioners that have been through it, few would claim to have enjoyed the experience. Nevertheless, many consider it to be a real eye-opener and report that it has had a positive impact on the way in which they intend to practise in the future.
If you do find yourself embroiled in the court process, don’t panic! Help, advice and support is available from your Trust, defence organisation or indemnifier and you should notify them as soon as you become aware of a possible claim. Depending on the nature of the claim and the stage it has reached, external lawyers may be appointed to investigate and lead the defence of the claim. Part of the lawyers’ job is to guide you through the legal process.
Understanding the claims process
Often, the first time a practitioner is made aware of a claim is following a request for records.
The claimant’s solicitors review these records in conjunction with an expert to formulate their allegations within a letter of claim. This is served on the defendant, who must then provide a letter of response within four months, or a longer period as the parties may agree. This process, known as the pre- action protocol, is an important one, which can allow a claim to be settled pre-action, where appropriate.
If a claim is not settled under the pre-action protocol, the claimant can then commence formal court proceedings. Broadly, this must be done within three years from the date of the alleged negligent treatment, or the “date of knowledge”, if this is later.
Once a defendant has received the court proceedings, there is a strict 14-day deadline to acknowledge proceedings by serving a defence or filing an “acknowledge of service” (which then allows a further 14 days in which to file a defence). The deadline for the defence may be extended, either by agreement between the parties, or following an application to the court.
After service of the defence, there will be an initial case management hearing. A procedural judge will fix a timetable of directions – a series of steps that need to be taken in order to bring a claim onwards to trial. These directions allow both parties to prove their case by the way of evidence, whether documentary, witness statement or from an independent expert. This cards on the table approach aims to narrow the issues in dispute ahead of trial, and also offers a chance to assess the evidence at each stage to see if there is any way to bring the case to conclusion before trial.
Throughout the litigation process, both parties will be constantly assessing the merits of their case. The majority of claims rarely end up going to trial, for the simple reason that either the claimant has been persuaded to discontinue the claim or the defendant has settled, generally with a formal written offer or through more informal negotiation.
However, should a claim end up going to court, the evidence gathered up to that point is brought before a judge and witness evidence may be required. At trial, a barrister will almost certainly be involved to present each party’s case and may very well have previously drafted the defence and advised in conference. At the conclusion of the trial, the court will give judgment either for the claimant or the defendant, and if required, award compensation to a successful claimant.
Most practitioners will be understandably concerned at becoming involved in court proceedings. However, thorough record keeping, engagement with experienced insurers and defence organisations and a co-operative approach to their investigations you can ensure you have protection in place in the unfortunate event of a patient claim.
For more information about the legal process surrounding a claim, take a look at BLM’s ‘What if?’ series of podcasts and accompanying materials, created by legal experts with years of experience in representing the interests of healthcare professionals before courts, inquests and professional regulators.
About BLM
BLM is the leading insurance and commercial risk law specialist in the UK and Ireland. With a turnover of over £100million, we advise insurers, Lloyd’s syndicates, MGAs, brokers, corporate policyholders, professional indemnifiers and other market organisations.
For further information, please visit: www.blmlaw.com
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